It has to be executed by the executor named in the will.
Question with alias name in the unregistered will, over 40 years old will
Dear LawGurus, This is continuation of the Previous WILL Question, I didnt cover all the points, wanted to make sure, I am providing better inputs for better insights. ******* Testator is my paternal grandmother, the testator has two legal heirs one son and a daughter The son is my father and daughter is my aunt.. The Testator has set of property in TN jurisdiction of which one of the property is self acquired and two other properties got thru registered partition deed executed between Testator and her legal heirs in the year 1972 The Testator bequeathed a unregistered WILL duly signed by two witnesses in the year 1976, on the WILL "the testator mentions the properties owned and on my name goes to my Son XXXX" (Instead XXXXXXXXXXX) (i.e XXXX is My father)... Now Testator and witnesses all are no more... How to legally execute the WILL as per the wishes of the testator.. Also my father is no more (he is the son of Testator)
Asked 4 years ago in Property Law
Religion: Hindu
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19 Answers
Apply for mutation of property in name of legal heirs
2) enclose copy of testator will
3) death certificate of father and testator
4) latest receipt of payment of property taxes
5) if there are no objections received mutation would be done in your mother and other legal heirs names
1. In the instant case the problem is that you shall have to establish that both "XXXX" & "XXXXXXXXXXX" are the same person when the said person and the testator are no more.
2. Collect document/evidence to establish the above fact which is vital for you to claim that the said property of your grandmother was bequeathed to your father.
3. File an application for seeking probate of the will sending copies of the same to all the legal heirs of your late grandmother to enable them to either contest or give consent to your application.
4. You shall have to proceed thereafter depending on the developments.
If you are getting more and more confused about the Will and its enforcement, then you better ignore the Will and arrange for an amicable talks with your paternal aunt who is having 50% share in the property.
As your father is no more now, the legal heirs of your father which includes you, your siblings and yor mother are entitled to inherit your father's share in the property and the other half share belongs to your paternal aunt and this fact cannot be denied.
Since there are no more legal heirs to your deceased grandmother other than your deceased father and you paternal aunt, there should not be any problem to divide the property into two shares (if not equally, then on mutually agreed conditions), and on the basis of the division (partition) of property, the legal heirs of your father can jointly acquire the half share of property allotted to you through the said partition deed, and the partition deed can be registered with the sub registrar within your jurisdiction which would facilitate you people to get the revenue records in respect of the share of your property transferred to your names directly.
Thereby, you can take possession and enjoy the property as absolute owners thereon.
None has question the Will so father ownership is intact. And on his intestate death, his legal heirs will inherit his properties.
Will is already effective on grand mother death. Now apply for legal heir certificate. On the basis of it, property will transfer in their name.
See for same a probate has to be filed and since witnesses are also not available other evidence to corroborate the will name of the father has to be given before the court.
The unregistered Will is as good as registered Will as registration of Will is not compulsory.
Even if the attesting witnesses are dead then also the Will can be proved by their legal heirs whoa re competent witness to identify their signature and prove the Will.
1. The best way to execute the will is to apply for probate of will in civil court.
2. The suit should be instituted as legal representative of your father and both his name should be mentioned that is original name as well as alias name.
if there is no objection, you can Apply for probate of will in jurisdictional civil court.
My Follow up Question is : WILL comprises of set of property is in both in Chennai city and part in urban areas(TownShip) where is the probate to be done? At Chennai Or property urban area court. Chennai Property has been encroached by some influential people, So we are NOT interested on it. (It is very difficult to get back from politically prominent person). If it can be Probated either of the place, Which one will be quicker? Thanks again LawGurus for your time and Insight. I highly appreciate each of you whole heartdly.
Asked 4 years ago
Testamentary petition for probate can be filed in Chennai or in township for both properties
2) if there is no contest you would get probate in 6 months
Probate is compulsory in Chennai but no need to file until demanded by govt. authorities to effect mutation of property.
Probate can be file at any place where property exits. Valid all over India.
The probate petition can be filed in either place.
The court process cannot be predicted, it may take almost same time, hence you may better plan to file at a place whichever is convenient to you.
You are welcome for your appreciations.
You can get same done in court at jurisdiction at Chennai or at place where other property is situated both the places has jurisdiction .
1. By seeking the grant of probate of the will you are not going to claim possession of your Chennai property.
2. Application for probate is filed for getting the seal of the Court about the genuineness and validity of the will only.
3. So, you can file the said application at Chennai court giving details of the entire property making a list of it.
4. Thereafter whether you claim for your Chennai property or not is your prerogative.
probate of a will can be taken through lower courts as well as district courts. the procedure is to file the application and pay the requisite stamp duty with a prayer to grant probate. If there is no objection it is granted fast else takes time. approx time is 6 months.
- As per law, an unregistered will is valid document, if it conforms to legal requirement of two witnesses who have signed the will in the presence of the testator and the testator has signed the will in their presence.
- Hence, the Registration of a Will is not compulsory , and after the death of the testator, an executor of the Will or a heir of the deceased testator can apply for probate.
- Further , A probate is a legal recognition given to a Will regarding its genuineness and legality, declared by a competent court.
- So, for the execution of the unregistered WILL ,you should file a petition for Probate the said WILL before the court.
- After getting the Probate decree, you can apply for mutation of the said property in the name of legal heirs ,as given in the WILL.
- Probation of WILL will certified its Guinness and ownership of the property , Hence you can file your probate petition either of the place , and which is suitable jurisdiction.
- Further, after getting the Probate order in your support , can also the challenge the Chennai property as well legally.
chennai property can be probated
Suit should filed at the place where your father was residing at time of his death.
1. Madras HC has original jurisdiction in civil cases, testamentary jurisdiction will depend on the value of property.Only a local lawyer can tell you whether probate petition is to filed in High Court or District Court.
2. You can file the probate petition wherein you will have to make your aunt a respondent. Court has to issue summons to her and if she comes to file her objections then it will be converted into a title suit.
